CHAPTER 205A

UNOFFICIAL

HAWAII REVISED STATUTES, CHAPTER 205A

COASTAL ZONE MANAGEMENT

Part I. Coastal Zone Management

Section 205A-1 Definitions

205A-2 Coastal zone management program; objectives and policies

205A-3 Lead agency

205A-3.5 Public advisory body; establishment; composition

205A-4 Implementation of objectives, policies, and guidelines

205A-5 Compliance

205A-6 Cause of action

Part II. Special Management Areas

Section 205A-21 Findings and purposes

205A-22 Definitions

205A-23 County special management area boundaries

205A-24 Repealed

205A-25 Repealed

205A-26 Special management area guidelines

205A-27 Designation of special management area authority

205A-28 Permit required for development

205A-29 Special management area use permit procedure

205A-30 Emergency and minor permits

205A-30.5 Prohibitions

205A-31 Repealed

205A-32 Penalties

205A-33 Injunctions

Part III. Shoreline Setbacks

Section 205A-41 Definitions

205A-42 Determination of the shoreline

205A-43 Establishment of shoreline setbacks and duties and powers of

the department

205A-43.5 Powers and duties of the authority

205A-43.6 Enforcement of shoreline setbacks

205A-44 Prohibitions

205A-45 Shoreline setback lines established by county

205A-46 Variances

205A-47 Repealed

205A-48 Conflict of other laws

205A-49 Adoption of rules

Part IV. Marine and Coastal Affairs

Section 205A-61 Definitions

205A-62 Duties and responsibilities of the lead agency

205A-63 Agency duties to coordinate related programs

205A-64 Public participation

Part V. Other Provisions

Section 205A-71 Artificial light on shoreline and ocean waters

Revised 1/31/06

PART I. COASTAL ZONE MANAGEMENT

§205A-1 Definitions.

As used in this chapter, unless the context otherwise requires:

"Agency" means any agency, board, commission, department, or officer of a county

government or the state government, including the authority as defined in part II;

"Artificial light" or "artificial lighting" means the light emanating from any fixed human-

made device.

"Coastal zone management area" means all lands of the State and the area extending

seaward from the shoreline to the limit of the State's police power and management

authority, including the United States territorial sea;

"Coastal zone management program" means the comprehensive statement in words,

maps, or other permanent media of communication, prepared, approved for submission,

and amended by the State and approved by the United States government pursuant to

Public Law No. 92-583, as amended, and the federal regulations adopted pursuant

thereto, which describes objectives, policies, laws, standards, and procedures to guide

and regulate public and private uses in the coastal zone management area, provided

however the "coastal zone management program" is consistent with the intent, purpose,

and provisions of this chapter;

"Directly illuminate" means to illuminate through the use of a glowing element, lamp,

globe, or reflector of an artificial light source.

"Land" means the earth, water, and air above, below, or on the surface;

"Lead agency" means the office of planning;

"Ocean waters" means all waters seaward of the shoreline within the jurisdiction of the

State.

"Person" means an individual, corporation, or partnership, and an organization or

association, whether or not incorporated;

"Public advisory body" means the advisory body established in section 205A-3.5;

"Shoreline" means the upper reaches of the wash of the waves, other than storm and

seismic waves, at high tide during the season of the year in which the highest wash of

the waves occurs, usually evidenced by the edge of vegetation growth, or the upper

limit of debris left by the wash of the waves. [L 1977, c 188, pt of §3; am L 1979, c 200,

§1; am L 1983, c 124, §7; am L 1986, c 258, §2; am L 1987, c 336, §7; am L 1988, c

352, §4; am L 1989, c 356, §4; am L 1990, c 126, §7; am L 1993, c 91, §2; am L 1995, c

104, §4; am L 1996, c 299, §3; am L 2001, c 169, §2; am L 2005, c 224, §3]

Revised 1/31/06

§205A-2 Coastal zone management program; objectives and policies.

(a) The objectives and policies in this section shall apply to all parts of this chapter.

(b) Objectives.

(1) Recreational resources;

(A) Provide coastal recreational opportunities accessible to the public.

(2) Historic resources;

(A) Protect, preserve, and, where desirable, restore those natural and

manmade historic and prehistoric resources in the coastal zone

management area that are significant in Hawaiian and American

history and culture.

(3) Scenic and open space resources;

(A) Protect, preserve, and, where desirable, restore or improve the

quality of coastal scenic and open space resources.

(4) Coastal ecosystems;

(A) Protect valuable coastal ecosystems, including reefs, from

disruption and minimize adverse impacts on all coastal

ecosystems.

(5) Economic uses;

(A) Provide public or private facilities and improvements important to

the State's economy in suitable locations.

(6) Coastal hazards;

(A) Reduce hazard to life and property from tsunami, storm waves,

stream flooding, erosion, subsidence, and pollution.

(7) Managing development;

(A) Improve the development review process, communication, and

public participation in the management of coastal resources and

hazards.

(8) Public participation;

(A) Stimulate public awareness, education, and participation in coastal

management.

(9) Beach protection;

(A) Protect beaches for public use and recreation.

(10) Marine resources;

(A) Promote the protection, use, and development of marine and

coastal resources to assure their sustainability.

(1) Recreational resources;

(A) Improve coordination and funding of coastal recreational planning

and management; and

(B) Provide adequate, accessible, and diverse recreational

opportunities in the coastal zone management area by:

(i) Protecting coastal resources uniquely suited for recreational

activities that cannot be provided in other areas;

(ii) Requiring replacement of coastal resources having

significant recreational value including, but not limited to,

surfing sites, fishponds, and sand beaches, when such

resources will be unavoidably damaged by development; or

requiring reasonable monetary compensation to the State for

recreation when replacement is not feasible or desirable;

Revised 1/31/06

(iii) Providing and managing adequate public access, consistent

with conservation of natural resources, to and along

shorelines with recreational value;

(iv) Providing an adequate supply of shoreline parks and other

recreational facilities suitable for public recreation;

(v) Ensuring public recreational uses of county, state, and

federally owned or controlled shoreline lands and waters

having recreational value consistent with public safety

standards and conservation of natural resources;

(vi) Adopting water quality standards and regulating point and

nonpoint sources of pollution to protect, and where feasible,

restore the recreational value of coastal waters;

(vii) Developing new shoreline recreational opportunities, where

appropriate, such as artificial lagoons, artificial beaches, and

artificial reefs for surfing and fishing; and

(viii) Encouraging reasonable dedication of shoreline areas with

recreational value for public use as part of discretionary

approvals or permits by the land use commission, board of

land and natural resources, and county authorities; and

crediting such dedication against the requirements of section

46-6.

(2) Historic resources;

(A) Identify and analyze significant archaeological resources;

(B) Maximize information retention through preservation of remains and

artifacts or salvage operations; and

display of historic resources.

(3) Scenic and open space resources;

(A) Identify valued scenic resources in the coastal zone management

area;

(B) Ensure that new developments are compatible with their visual

environment by designing and locating such developments to

minimize the alteration of natural landforms and existing public

views to and along the shoreline;

shoreline open space and scenic resources; and

(D) Encourage those developments that are not coastal dependent to

locate in inland areas.

(4) Coastal ecosystems;

(A) Exercise an overall conservation ethic, and practice stewardship in

the protection, use, and development of marine and coastal

resources;

(B) Improve the technical basis for natural resource management;

significant biological or economic importance;

(D) Minimize disruption or degradation of coastal water ecosystems by

effective regulation of stream diversions, channelization, and similar

land and water uses, recognizing competing water needs; and

Revised 1/31/06

(E) Promote water quantity and quality planning and management

practices that reflect the tolerance of fresh water and marine

ecosystems and maintain and enhance water quality through the

development and implementation of point and nonpoint source

water pollution control measures.

(5) Economic uses;

(A) Concentrate coastal dependent development in appropriate areas;

(B) Ensure that coastal dependent development such as harbors and

ports, and coastal related development such as visitor industry

facilities and energy generating facilities, are located, designed,

and constructed to minimize adverse social, visual, and

environmental impacts in the coastal zone management area; and

developments to areas presently designated and used for such

developments and permit reasonable long-term growth at such

areas, and permit coastal dependent development outside of

presently designated areas when:

(i) Use of presently designated locations is not feasible;

(ii) Adverse environmental effects are minimized; and

(iii) The development is important to the State's economy.

(6) Coastal hazards;

(A) Develop and communicate adequate information about storm wave,

tsunami, flood, erosion, subsidence, and point and nonpoint source

pollution hazards;

(B) Control development in areas subject to storm wave, tsunami,

flood, erosion, hurricane, wind, subsidence, and point and nonpoint

source pollution hazards;

Flood Insurance Program; and

(D) Prevent coastal flooding from inland projects.

(7) Managing development;

(A) Use, implement, and enforce existing law effectively to the

maximum extent possible in managing present and future coastal

zone development;

(B) Facilitate timely processing of applications for development permits

and resolve overlapping or conflicting permit requirements; and

proposed significant coastal developments early in their life cycle

and in terms understandable to the public to facilitate public

participation in the planning and review process.

(8) Public participation;

(A) Promote public involvement in coastal zone management

processes;

(B) Disseminate information on coastal management issues by means

of educational materials, published reports, staff contact, and public

workshops for persons and organizations concerned with coastal

issues, developments, and government activities; and

to respond to coastal issues and conflicts.

Revised 1/31/06

(9) Beach protection;

(A) Locate new structures inland from the shoreline setback to

conserve open space, minimize interference with natural shoreline

processes, and minimize loss of improvements due to erosion;

(B) Prohibit construction of private erosion-protection structures

seaward of the shoreline, except when they result in improved

aesthetic and engineering solutions to erosion at the sites and do

not interfere with existing recreational and waterline activities; and

seaward of the shoreline.

(10) Marine resources;

(A) Ensure that the use and development of marine and coastal

resources are ecologically and environmentally sound and

economically beneficial;

(B) Coordinate the management of marine and coastal resources and

activities to improve effectiveness and efficiency;

federal agencies in the sound management of ocean resources

within the United States exclusive economic zone;

(D) Promote research, study, and understanding of ocean processes,

marine life, and other ocean resources in order to acquire and

inventory information necessary to understand how ocean

development activities relate to and impact upon ocean and coastal

resources; and

(E) Encourage research and development of new, innovative

technologies for exploring, using, or protecting marine and coastal

resources. [L 1977, c 188, pt of §3; am L 1993, c 258, §1; am L

1994, c 3, §1; am L 1995, c 104, §5; am L 2001, c 169, §3]

§205A-3 Lead agency.

The lead agency shall:

(1) Receive, disburse, use, expend, and account for all funds that are made

available by the United States and the State for the coastal zone management

program;

(2) Provide support and assistance in the administration of the coastal zone

management program;

(3) Review federal programs, federal permits, federal licenses, and federal

development proposals for consistency with the coastal zone management

program;

(4) Consult with the counties and the public in preparing guidelines to further specify

and clarify the objectives and policies of this chapter to be submitted twenty days

prior to the convening of any regular session of the legislature for review,

modification, or enactment by the legislature;

(5) Conduct a continuing review of the administration of the coastal zone

management program and of the compliance of state and county agencies with

the objectives and policies of this chapter;

(6) Facilitate public participation in the coastal zone management program, including

the maintenance of a public advisory body to identify coastal management

problems and to provide policy advice and assistance to the lead agency;

Revised 1/31/06

(7) Prepare and periodically update a plan for use of coastal zone management

funds to resolve coastal problems and issues that are not adequately addressed

by existing laws and rules;

(8) Advocate agency compliance with chapter 205A;

(9) Monitor the coastal zone management-related enforcement activities of the state

and county agencies responsible for the administration of the objectives and

policies of this chapter;

(10) Prepare an annual report to the governor and the legislature which shall include

recommendations for enactment of any legislation necessary to require any

agency to comply with the objectives and policies of this chapter and any

guidelines enacted by the legislature; and

(11) Coordinate the implementation of the ocean resources management plan. [L

1977, c 188, pt of §3; am L 1979, c 200, §2; am L 1989, c 356, §5; am L 1993, c

258, §2; am L 1995, c 104, §6; am L 2001, c 169, §4]

§205A-3.5 Public advisory body; establishment; composition.

(a) There is established within the lead agency a public advisory body that shall

provide support to the lead agency as set forth in subsection (f).

(b) The public advisory body shall be composed of not more than twelve members

who shall be appointed by the director of the lead agency for staggered terms of

not more than three years. These members shall be selected with consideration

given to the following criteria:

(1) Statewide geographic distribution; and

(2) Balanced representation from among the following interests: business,

environment, practitioners of native Hawaiian culture, terrestrial and

marine commerce, recreation, research, and tourism.

The lead agency shall undertake widespread solicitation of applications from

persons who are interested in serving on the public advisory body.

(d) The public advisory body may establish working groups as needed. Working

group members may include persons who are not members of the public

advisory body.

(e) Public advisory body and working group members shall serve without

compensation.

(f) The public advisory body shall support the lead agency by providing advice

regarding marine and coastal zone management planning, coordination, and

facilitation of functions of the coastal zone management program. It shall:

(1) Evaluate the state coastal zone management program, including activity of

the network agencies, and make recommendations for improvements;

(2) Advocate for the program to the public and the executive and legislative

branches of government; and

(3) Advocate, provide for, and act upon citizen input.

(g) The public advisory body shall work toward the implementation of an integrated

and comprehensive management system for marine and coastal zone resources,

consistent with the objectives and policies established in this chapter. [L 1995, c

104, §3; am L 2001, c 169, §5]

Revised 1/31/06

§205A-4 Implementation of objectives, policies, and guidelines

(a) In implementing the objectives of the coastal zone management program, the

agencies shall give full consideration to ecological, cultural, historic, esthetic,

recreational, scenic, and open space values, and coastal hazards, as well as to

needs for economic development.

(b) The objectives and policies of this chapter and any guidelines enacted by the

legislature shall be binding upon actions within the coastal zone management

area by all agencies, within the scope of their authority. [L 1977, c 188, pt of §3;

am L 1979, c 200, §3; am L 1989, c 356, §6]

§205A-5 Compliance.

(a) All agencies shall ensure that their rules comply with the objectives and policies

of this chapter and any guidelines enacted by the legislature.

(b) All agencies shall enforce the objectives and policies of this chapter and any

rules adopted pursuant to this chapter. [L 1977, c 188, pt of §3; am L 1979, c

200, §4; am L 1989, c 356, §7; am L 1993, c 258, §3]

§205A-6 Cause of action.

(a) Subject to chapters 661 and 662, any person or agency may commence a civil

action alleging that any agency:

(1) Is not in compliance with one or more of the objectives, policies, and

guidelines provided or authorized by this chapter within the special

management area and the waters from the shoreline to the seaward limit

of the State's jurisdiction; or

(2) Has failed to perform any act or duty required to be performed under this

chapter; or

(3) In exercising any duty required to be performed under this chapter, has

not complied with the provisions of this chapter.

(b) In any action brought under this section, the lead agency, if not a party, may

intervene as a matter of right.

any relief as may be appropriate, including a temporary restraining order or

preliminary injunction.

(d) Any action brought under this section shall be commenced within sixty days of

the act which is the basis of the action.

(e) Nothing in this section shall restrict any right that any person may have to assert

any other claim or bring any other action. [L 1977, c 188, pt of §3; am L 1979, c

200, §5]

Revised 1/31/06

PART II. SPECIAL MANAGEMENT AREAS

§205A-21 Findings and purposes.

The legislature finds that, special controls on developments within an area along the

shoreline are necessary to avoid permanent losses of valuable resources and the

foreclosure of management options, and to ensure that adequate access, by dedication

or other means, to public owned or used beaches, recreation areas, and natural

reserves is provided. The legislature finds and declares that it is the state policy to

preserve, protect, and where possible, to restore the natural resources of the coastal

zone of Hawaii. [L 1975, c 176, pt of §1; am L 1977, c 188, §5]

§205A-22 Definitions.

As used in this part, unless the context otherwise requires:

"Applicant" means any individual, organization, partnership, or corporation, including

any utility and any agency of government.

"Authority" means the county planning commission, except in counties where the county

planning commission is advisory only, in which case "authority" means the county

council or such body as the council may by ordinance designate. The authority may, as

appropriate, delegate the responsibility for administering this part.

"Department" means the planning department in the counties of Kauai, Maui, and

Hawaii, and the department of land utilization in the city and county of Honolulu, or other

appropriate agency as designated by the county councils.

"Development" means any of the uses, activities, or operations on land or in or under

water within a special management area that are included below:

(1) Placement or erection of any solid material or any gaseous, liquid, solid, or

thermal waste;

(2) Grading, removing, dredging, mining, or extraction of any materials;

(3) Change in the density or intensity of use of land, including but not limited to the

division or subdivision of land;

(4) Change in the intensity of use of water, ecology related thereto, or of access

thereto; and

(5) Construction, reconstruction, demolition, or alteration of the size of any structure.

"Development" does not include the following:

(1) Construction of a single-family residence that is not part of a larger development;

(2) Repair or maintenance of roads and highways within existing rights-of-way;

(3) Routine maintenance dredging of existing streams, channels, and drainage

ways;

(4) Repair and maintenance of underground utility lines, including but not limited to

water, sewer, power, and telephone and minor appurtenant structures such as

pad mounted transformers and sewer pump stations;

(5) Zoning variances, except for height, density, parking, and shoreline setback;

(6) Repair, maintenance, or interior alterations to existing structures;

(7) Demolition or removal of structures, except those structures located on any

historic site as designated in national or state registers;

Revised 1/31/06

(8) Use of any land for the purpose of cultivating, planting, growing, and harvesting

plants, crops, trees, and other agricultural, horticultural, or forestry products or

animal husbandry, or aquaculture or mariculture of plants or animals, or other

agricultural purposes;

(9) Transfer of title to land;

(10) Creation or termination of easements, covenants, or other rights in structures or

land;

(11) Subdivision of land into lots greater than twenty acres in size;

(12) Subdivision of a parcel of land into four or fewer parcels when no associated

construction activities are proposed; provided that any land which is so

subdivided shall not thereafter qualify for this exception with respect to any

subsequent subdivision of any of the resulting parcels;

(13) Installation of underground utility lines and appurtenant aboveground fixtures less

than four feet in height along existing corridors;

(14) Structural and nonstructural improvements to existing single-family residences,

where otherwise permissible;

(15) Nonstructural improvements to existing commercial structures; and

(16) Construction, installation, maintenance, repair, and replacement of civil defense

warning or signal devices and sirens;

provided that whenever the authority finds that any excluded use, activity, or operation

may have a cumulative impact, or a significant environmental or ecological effect on a

special management area, that use, activity, or operation shall be defined as

"development" for the purpose of this part.

"Special management area" means the land extending inland from the shoreline as

delineated on the maps filed with the authority as of June 8, 1977, or as amended

pursuant to section 205A-23.

"Special management area emergency permit" means an action by the authority

authorizing development in cases of emergency requiring immediate action to prevent

substantial physical harm to persons or property or to allow the reconstruction of

structures damaged by natural hazards to their original form; provided that such

structures were previously found to be in compliance with requirements of the Federal

Flood Insurance Program.

"Special management area minor permit" means an action by the authority authorizing

development the valuation of which is not in excess of $125,000 and which has no

substantial adverse environmental or ecological effect, taking into account potential

cumulative effects.

"Special management area use permit" means an action by the authority authorizing

development the valuation of which exceeds $125,000 or which may have a substantial

adverse environmental or ecological effect, taking into account potential cumulative

effects.

"Structure" includes but is not limited to any building, road, pipe, flume, conduit, siphon,

aqueduct, telephone line, and electrical power transmission and distribution line.

Revised 1/31/06

"Valuation" shall be determined by the authority and means the estimated cost to

replace the structure in kind based on current replacement costs, or in the cases of

other development as defined above, the fair market value of the development. [L 1975,

c 176, pt of §1; am L 1977, c 188, §6; am L 1979, c 200, §7; am L 1982, c 126, §1; am L

1983, c 124, §8; am L 1984, c 113, §1; am L 1991, c 129, §1; am L 1993, c 258, §4; am

L 2001, c 169, §6; am L 2004, c 76, §2]

§205A-23 County special management area boundaries.

(a) The special management area in each county shall be as shown on such maps

filed with the authority as of June 8, 1977.

(b) On or before December 31, 1979, the authority shall review and pursuant to

chapter 91, amend as necessary its special management area boundaries, to

further the objectives and policies of this chapter, provided that any contraction of

the special management area boundaries as provided for in subsection (a), shall

be subject to lead agency review and determination as to compliance with the

objectives and policies of this chapter and any guidelines enacted by the

legislature. Copies of the existing and amended maps shall be filed with the

authority and the lead agency.

management area boundary at any point in time; provided that the procedures

and requirements outlined in subsection (b) shall be complied with and provided

further that any future special management area boundary adjustments shall be

restricted to the coastal zone management area. [L 1975, c 176, pt of §1; am L

1977, c 188, §7; am L 1979, c 200, §8]

§§205A-24, 25 REPEALED. L 1977, c 188, §§8, 9.

§205A-26 Special management area guidelines.

In implementing this part, the authority shall adopt the following guidelines for the review

of developments proposed in the special management area:

(1) All development in the special management area shall be subject to reasonable

terms and conditions set by the authority in order to ensure:

(A) Adequate access, by dedication or other means, to publicly owned or used

beaches, recreation areas, and natural reserves is provided to the extent

consistent with sound conservation principles;

(B) Adequate and properly located public recreation areas and wildlife

preserves are reserved;

management which will minimize adverse effects upon special

management area resources; and

(D) Alterations to existing land forms and vegetation, except crops, and

construction of structures shall cause minimum adverse effect to water

resources and scenic and recreational amenities and minimum danger of

floods, wind damage, storm surge, landslides, erosion, siltation, or failure

in the event of earthquake.

(2) No development shall be approved unless the authority has first found:

(A) That the development will not have any substantial adverse environmental

or ecological effect, except as such adverse effect is minimized to the

extent practicable and clearly outweighed by public health, safety, or

Revised 1/31/06

compelling public interests. Such adverse effects shall include, but not be

limited to, the potential cumulative impact of individual developments,

each one of which taken in itself might not have a substantial adverse

effect, and the elimination of planning options;

(B) That the development is consistent with the objectives, policies, and

special management area guidelines of this chapter and any guidelines

enacted by the legislature; and

zoning. Such a finding of consistency does not preclude concurrent

processing where a general plan or zoning amendment may also be

required.

(3) The authority shall seek to minimize, where reasonable:

(A) Dredging, filling or otherwise altering any bay, estuary, salt marsh, river

mouth, slough or lagoon;

(B) Any development which would reduce the size of any beach or other area

usable for public recreation;

access to tidal and submerged lands, beaches, portions of rivers and

streams within the special management areas and the mean high tide line

where there is no beach;

(D) Any development which would substantially interfere with or detract from

the line of sight toward the sea from the state highway nearest the coast;

and

(E) Any development which would adversely affect water quality, existing

areas of open water free of visible structures, existing and potential

fisheries and fishing grounds, wildlife habitats, or potential or existing

agricultural uses of land. [L 1975, c 176, pt of §1; am L 1977, c 188, §10;

am L 1979, c 200, §9; am L 1984, c 113, §2; am L 1994, c 3, §2]

§205A-27 Designation of special management area authority.

The authority is designated the special management area authority and is authorized to

carry out the objectives, policies and procedures of this part. [L 1975, c 176, pt of §1;

am L 1979, c 200, §10]

§205A-28 Permit required for development.

No development shall be allowed in any county within the special management area

without obtaining a permit in accordance with this part. [L 1975, c 176, pt of §1; am L

1979, c 200, §11]

§205A-29 Special management area use permit procedure.

(a) The authority in each county, upon consultation with the central coordinating

agency, shall adopt rules under chapter 91 setting the special management area

use permit application procedures, conditions under which hearings must be

held, and the time periods within which the hearing and action for special

management area use permits shall occur. The authority shall provide for

adequate notice to individuals whose property rights may be adversely affected

and to persons who have requested in writing to be notified of special

management area use permit hearings or applications. The authority shall also

provide public notice statewide at least twenty days in advance of the hearing.

Revised 1/31/06

The authority may require a reasonable filing fee which shall be used for the

purposes set forth herein.

Any rule adopted by the authority shall be consistent with the objectives, policies,

and special management area guidelines provided in this chapter. Action on the

special management permit shall be final unless otherwise mandated by court

order.

(b) No agency authorized to issue permits pertaining to any development within the

special management area shall authorize any development unless approval is

first received in accordance with the procedures adopted pursuant to this part.

For the purposes of this subsection, county general plan, state land use district

boundary amendments, and zoning changes are not permits. [L 1975, c 176, pt

of §1; am L 1977, c 188, §11; am L 1979, c 200, §12; am L 1989, c 356, §8; am L

1998, c 2, §62]

§205A-30 Emergency and minor permits.

Each county authority shall provide specific procedures consistent with this part for the

issuance of special management area emergency permits or special management area

minor permits, pursuant to the procedural requirements within this part, and judicial

review from the grant and denial thereof. The lead agency shall file notice of special

management area minor permits in the next available issue of the periodic bulletin of the

office of environmental quality control. [L 1975, c 176, pt of §1; am L 1979, c 200, §13;

am L 2001, c 169, §7]

§205A-30.5 Prohibitions.

(a) No special management area use permit or special management area minor

permit shall be granted for structures that allow artificial light from floodlights,

uplights, or spotlights used for decorative or aesthetic purposes when the light:

(1) Directly illuminates the shoreline and ocean waters; or

(2) Is directed to travel across property boundaries toward the shoreline and

ocean waters.

(b) Subsection (a) shall not apply to special management area use permits for

structures with:

(1) An outdoor lighting fixture that is located on the grounds of a hotel/hotel-

condo as defined in section 486K-1; provided that:

(A) The outdoor lighting fixture is located underwater or is directed

downward and illuminates a limited area of no more than thirty feet

into the shoreline and ocean waters; or

(B) The outdoor lighting fixture is the only practicable means of

ensuring the safety and security of guests, visitors, and employees;

and

(2) Artificial lighting provided by a government agency or its authorized users

for government operations, security, public safety, or navigational needs;

provided that a government agency or its authorized users shall make

reasonable efforts to properly position or shield lights to minimize adverse

impacts.

implementing this section. [L 2005, c 224, pt of §2]

Revised 1/31/06

§205A-31 REPEALED. L 1979, c 200, §14.

§205A-32 Penalties.

(a) Any person who violates any provision of part II or part III shall be liable as

follows:

(1) For a civil fine not to exceed $100,000; or

(2) For the cost of returning the affected environment or ecology within the

coastal management area to the condition existing before the violation.

(b) In addition to any other penalties, any person who is violating any provision of

part II or part III shall be liable for a civil fine not to exceed $10,000 a day for

each day in which such violation persists.

circuit court or may be imposed by the department after an opportunity for a

hearing under chapter 91. Imposition of a civil fine shall not be a prerequisite to

any civil fine or other injunctive relief ordered by the circuit court. [L 1975, c 176,

pt of §1; am L 1989, c 356, §9; am L 2001, c 169, §8]

§205A-33 Injunctions.

Any person or agency violating any provision of this chapter may be enjoined by the

circuit court of the State by mandatory or restraining order necessary or proper to

effectuate the purposes of this chapter in a suit brought by the authority or the lead

agency. [L 1979, c 200, §15; am L 1983, c 76, §1]

Revised 1/31/06

PART III. SHORELINE SETBACKS

§205A-41 Definitions.

As used in this part, unless the context otherwise requires:

"Board approval" means approval by the board of land and natural resources pursuant

to chapter 183C.

"Shoreline area" shall include all of the land area between the shoreline and the

shoreline setback line and may include the area between mean sea level and the

shoreline; provided that if the highest annual wash of the waves is fixed or significantly

affected by a structure that has not received all permits and approvals required by law

or if any part of any structure in violation of this part extends seaward of the shoreline,

then the term "shoreline area" shall include the entire structure.

"Shoreline setback line" means that line established in this part or by the county running

inland from the shoreline at a horizontal plane.

"Structure" includes, but is not limited to, any portion of any building, pavement, road,

pipe, flume, utility line, fence, groin, wall, or revetment. [L 1986, c 258, pt of §1; am L

1989, c 356, §§2, 10; am L 1993, c 258, §5; am L 1995, c 11, §12 and c 69, §12]

§205A-42 Determination of the shoreline.

(a) The board of land and natural resources shall adopt rules pursuant to chapter 91

prescribing procedures for determining a shoreline and appeals of shoreline

determinations that are consistent with subsection (b); provided that no

determination of a shoreline shall be valid for a period longer than twelve months,

except where the shoreline is fixed by artificial structures that have been

approved by appropriate government agencies and for which engineering

drawings exist to locate the interface between the shoreline and the structure.

(b) The chairperson of the board of land and natural resources shall cause a public

notice to be published in the periodic bulletin published by the office of

environmental quality control. All comments to the application for shoreline

certification shall be submitted in writing to the state land surveyor no later than

fifteen calendar days from the date of the public notice of the application. Notice

of application for certification shall be identified by tax map key number, and

where applicable, street address and nearest town. [L 1986, c 258, pt of §1; gen

ch 1993; am L 1995, c 102, §1]

§205A-43 Establishment of shoreline setbacks and duties and powers of the

department.

(a) Setbacks along shorelines are established of not less than twenty feet and not

more than forty feet inland from the shoreline. The department shall adopt rules

pursuant to chapter 91, and shall enforce the shoreline setbacks and rules

pertaining thereto.

(b) The powers and duties of the department shall include, but not be limited to:

(1) The department shall adopt rules under chapter 91 prescribing procedures

for determining the shoreline setback line; and

Revised 1/31/06

(2) The department shall review the plans of all applicants who propose any

structure, activity, or facility that would be prohibited without a variance

pursuant to this part. The department may require that the plans be

supplemented by accurately mapped data and photographs showing

natural conditions and topography relating to all existing and proposed

structures and activities. [L 1986, c 258, pt of §1; am L 1989, c 356, §11]

§205A-43.5 Powers and duties of the authority.

(a) Prior to action on a variance application, the authority shall hold a public hearing

under chapter 91. By adoption of rules under chapter 91, the authority may

delegate responsibility to the department. Public and private notice, including

reasonable notice to abutting property owners and persons who have requested

this notice, shall be provided, but a public hearing may be waived prior to action

on a variance application for:

(1) Stabilization of shoreline erosion by the moving of sand entirely on public

lands;

(2) Protection of a legal structure costing more than $20,000; provided the

structure is at risk of immediate damage from shoreline erosion;

(3) Other structures or activities; provided that no person or agency has

requested a public hearing within twenty- five calendar days after public

notice of the application; or

(4) Maintenance, repair, reconstruction, and minor additions or alterations of

legal boating, maritime, or watersports recreational facilities, which result

in little or no interference with natural shoreline processes.

(b) The authority shall either act on variance applications or, by adoption of rules

under chapter 91, delegate the responsibility to the department. [L 1989, c 356,

pt of §1]

§205A-43.6 Enforcement of shoreline setbacks.

(a) The department or an agency designated by department rules shall enforce this

part and rules adopted pursuant to this part. Any structure or activity prohibited

by section 205A-44, that has not received a variance pursuant to this part or

complied with conditions on a variance, shall be removed or corrected. No other

state or county permit or approval shall be construed as a variance pursuant to

this part.

(b) Where the shoreline is affected by an artificial structure that has not been

authorized with government agency permits required by law, if any part of the

structure is on private property, then for purposes of enforcement of this part, the

structure shall be construed to be entirely within the shoreline area.

shoreline and enforce rules established under chapter 183C shall not be

diminished by an artificial structure in violation of this part. [L 1989, c 356, pt of

§1; gen ch 1993; am L 1995, c 11, §13 and c 69, §13]

§205A-44 Prohibitions.

(a) The mining or taking of sand, dead coral or coral rubble, rocks, soil, or other

beach or marine deposits from the shoreline area is prohibited with the following

exceptions:

Revised 1/31/06

(1) The taking from the shoreline area of the materials, not in excess of one

gallon per person per day, for reasonable, personal, noncommercial use,

provided that stricter provisions may be established by the counties;

(2) Where the mining or taking is authorized by a variance pursuant to this

part;

(3) The clearing of the materials from existing drainage pipes and canals and

from the mouths of streams including clearing for the purposes under

section 46-11.5; provided that the sand removed shall be placed on

adjacent areas unless such placement would result in significant turbidity;

(4) The cleaning of the shoreline area for state or county maintenance

purposes, including the clearing for purposes under section 46-12;

provided that the sand removed shall be placed on adjacent areas unless

the placement would result in significant turbidity.

(b) Except as provided in this section, structures are prohibited in the shoreline area

without a variance pursuant to this part. Structures in the shoreline area shall not

need a variance if:

(1) They were completed prior to June 22, 1970;

(2) They received either a building permit, board approval, or shoreline

setback variance prior to June 16, 1989;

(3) They are outside the shoreline area when they receive either a building

permit or board approval;

(4) They are necessary for or ancillary to continuation of existing agriculture

or aquaculture in the shoreline area on June 16, 1989;

(5) They are minor structures permitted under rules adopted by the

department which do not affect beach processes or artificially fix the

shoreline and do not interfere with public access or public views to and

along the shoreline; or

(6) Work being done consists of maintenance, repair, reconstruction, and

minor additions or alterations of legal boating, maritime, or watersports

recreational facilities, which are publicly owned, and which result in little or

no interference with natural shoreline processes;

provided that permitted structures may be repaired, but shall not be enlarged

within the shoreline area without a variance. [L 1986, c 258, pt of §1; am L 1988,

c 375, §1; am L 1989, c 356, §12]

§205A-45 Shoreline setback lines established by county.

(a) The several counties through rules adopted pursuant to chapter 91 or ordinance

may require that shoreline setback lines be established at distances greater than

that established in this part.

(b) The several counties through rules adopted pursuant to chapter 91 or ordinance

may expand the shoreline area to include the area between mean sea level and

the shoreline. [L 1986, c 258, pt of §1; am L 1989, c 356, §13]

§205A-46 Variances.

(a) A variance may be granted for a structure or activity otherwise prohibited in this

part if the authority finds in writing, based on the record presented, that the

proposed structure or activity is necessary for or ancillary to:

(1) Cultivation of crops;

Revised 1/31/06

(2) Aquaculture;

(3) Landscaping; provided that the authority finds that the proposed structure

or activity will not adversely affect beach processes and will not artificially

fix the shoreline;

(4) Drainage;

(5) Boating, maritime, or watersports recreational facilities;

(6) Facilities or improvements by public agencies or public utilities regulated

under chapter 269;

(7) Private facilities or improvements that are clearly in the public interest;

(8) Private facilities or improvements which will neither adversely affect beach

processes nor artificially fix the shoreline; provided that the authority also

finds that hardship will result to the applicant if the facilities or

improvements are not allowed within the shoreline area;

(9) Private facilities or improvements that may artificially fix the shoreline;

provided that the authority also finds that shoreline erosion is likely to

cause hardship to the applicant if the facilities or improvements are not

allowed within the shoreline area, and the authority imposes conditions to

prohibit any structure seaward of the existing shoreline unless it is clearly

in the public interest; or

(10) Moving of sand from one location seaward of the shoreline to another

location seaward of the shoreline; provided that the authority also finds

that moving of sand will not adversely affect beach processes, will not

diminish the size of a public beach, and will be necessary to stabilize an

eroding shoreline.

(b) Hardship shall be defined in rules adopted by the authority under chapter 91.

Hardship shall not be determined as a result of county zoning changes, planned

development permits, cluster permits, or subdivision approvals after June 16,

1989, or as a result of any other permit or approval listed in rules adopted by the

authority.

(1) To maintain safe lateral access to and along the shoreline or adequately

compensate for its loss;

(2) To minimize risk of adverse impacts on beach processes;

(3) To minimize risk of structures failing and becoming loose rocks or rubble

on public property; and

(4) To minimize adverse impacts on public views to, from, and along the

shoreline. [L 1986, c 258, pt of §1; am L 1989, c 356, §14; am L 1993, c

258, §6]

§205A-47 REPEALED. L 1989, c 356, §16.

§205A-48 Conflict of other laws.

In case of a conflict between the requirements of any other state law or county

ordinance regarding shoreline setback lines, the more restrictive requirements shall

apply in furthering the purposes of this part. Nothing contained in this part shall be

construed to diminish the jurisdiction of the state department of transportation over

wharves, airports, docks, piers, or other commercial harbors, and any other maritime

facilities constructed by the State; provided that such plans are submitted for the review

and information of the officer of the respective agency charged with the administration

Revised 1/31/06

of the county zoning laws, and found not to conflict with any county ordinances, zoning

laws, and building codes. [L 1986, c 258, pt of §1; am L 1991, c 272, §6]

§205A-49 Adoption of rules. Each agency charged with carrying out this part shall adopt

rules necessary to implement or comply with this part by July 1, 1990. All rules shall be

adopted under chapter 91. [L 1986, c 258, pt of §1; am L 1989, c 356, §15]

§205A-49 Adoption of rules.

Each agency charged with carrying out this part shall adopt rules necessary to

implement or comply with this part by July 1, 1990. All rules shall be adopted under

chapter 91. [L 1986, c 258, pt of §1; am L 1989, c 356, §15]

Revised 1/31/06

PART IV. MARINE AND COASTAL AFFAIRS

§205A-61 Definitions.

As used in this part:

"Exclusive economic zone" or "EEZ" means that area set forth in the Presidential

Proclamation 5030 issued on March 10, 1983, whereby the United States proclaimed

jurisdiction from the seaward boundary of the State out to two hundred nautical miles

from the baseline from which the breadth of the territorial sea is measured.

"Marine" means ocean and ocean-related resources.

"Plan" means the Hawaii ocean resources management plan, created and approved by

the Hawaii ocean and marine resources council, as amended by the lead agency. [L

1995, c 104, pt of §2]

§205A-62 Duties and responsibilities of the lead agency.

The lead agency shall have the following duties and responsibilities:

(1) Coordinate overall implementation of the plan, giving special consideration to the

plan's priority recommendations;

(2) Review and periodically update the plan;

(3) Coordinate the development of state agency work plans to implement the ocean

resources management plan. The work plans shall be revised on a biennial basis

and coordinated with the budget process. State agencies with responsibilities

relating to marine and coastal zone management include but are not limited to:

(A) The department of agriculture;

(B) The department of business, economic development, and tourism;

(D) The department of education;

(E) The department of health;

(F) The department of land and natural resources;

(G) The department of public safety;

(H) The department of transportation; and

(I) The University of Hawaii;

(4) Ensure that state agency work plans are closely coordinated with the work plans

of relevant federal and county agencies;

(5) Analyze, resolve conflicts between, and prioritize, in cooperation with relevant

agencies and as part of the work plan development process, the sector-specific

recommendations included in the plan;

(6) Coordinate exclusive economic zone and other marine- related issues with state

and county agencies;

(7) Provide technical assistance to the agencies on policy and issue-related matters

regarding marine and coastal resources management;

(8) Coordinate marine and coastal education activities; and

(9) Adopt rules pursuant to chapter 91 to carry out the purposes of this part. [L 1995,

c 104, pt of §2]

§205A-63 Agency duties to coordinate related programs.

All agencies managing marine and coastal resources, shall:

Revised 1/31/06

(1) Actively work toward the goals, objectives, and policies established by this

chapter; and

(2) Coordinate the development of the state or county agency's programs with the

plan. [L 1995, c 104, pt of §2]

§205A-64 Public participation.

The lead agency and the public advisory body shall involve citizens and interested

groups and organizations in the updating and implementation of the plan. [L 1995, c

104, pt of §2; am L 2002, c 16, §7]

Revised 1/31/06

PART V. OTHER PROVISIONS

§205A-71 Artificial light on shoreline and ocean waters.

(a) Artificial light from floodlights, uplights, or spotlights used for decorative or

aesthetic purposes is prohibited when the light:

(1) Directly illuminates the shoreline and ocean waters; or

(2) Is directed to travel across property boundaries toward the shoreline and

ocean waters.

(b) Subsection (a) shall not apply to:

(1) An outdoor lighting fixture that is located on the grounds of a hotel/hotel-

condo as defined in section 486K-1; provided that:

(A) The outdoor lighting fixture is located underwater or is directed

downward and illuminates a limited area of no more than thirty feet

into the shoreline and ocean waters; or

(B) The outdoor lighting fixture is the only practicable means of

ensuring the safety and security of guests, visitors, and employees;

and

(2) Artificial lighting provided by a government agency or its authorized users

for government operations, security, public safety, or navigational needs;

provided that a government agency or its authorized users shall make

reasonable efforts to properly position or shield lights to minimize adverse

impacts.

implementing this section. [L 2005, c 224, pt of §2]

Revised 1/31/06